Rule changes are afoot to bring municipal court criminal practice more in line with the process for indictable offenses in Superior Court.
Revisions proposed by the Supreme Court Committee on Municipal Court Practice in a report published Feb. 18 would:
• allow defense lawyers to obtain notes taken by police;
• entitle both sides to the birthdates of potential witnesses, from which to learn if they have criminal records;
• authorize protective orders to preserve confidential information, not just confidential relationships;
• allow municipal judges to issue restraining orders by phone; and
• expand the situations in which municipal pleas could be entered by mail.
The proposal on police notes would amend Rule 7:7-7 to encompass discovery of "any and all reports and notes of law enforcement officers related to the incident." The present rule refers only to police reports.
In 2011, the Supreme Court held in State v. W.B., 205 N.J. 588, that a criminal court rule permitting the discovery of police reports encompasses police notes, which are often destroyed once the final police report is prepared. The court said those notes must be preserved, and if they are not, the defendant might be entitled to an adverse inference charge.
Because W.B. was a rape case, some committee members did not believe it applied to the minor types of offenses that are handled in municipal courts.
A "large majority," however, believed that W.B.‘s reasoning applied with equal force to municipal court cases. The majority also thought that suggested language sent to them by another court committee that also took a look at the issue — the Special Committee on Electronic Discovery Issues in Criminal and Quasi-Criminal Cases — was too narrow because it referred to "contemporaneous notes of interviews or observations of the crime scene."
The majority’s view was that "a law enforcement officer should preserve notes relating to every part of the investigation," not just those relating to interviews or taken at the scene.
The Criminal Practice Committee, on referral from the W.B. court, concluded that the criminal rules, which refer only to the reports themselves, did not need to be clarified and that any issues that arise should be addressed case by case.
Municipal defense lawyer Jeffrey Gold of Cherry Hill, a member of the Municipal Court Practice Committee, says the change is an important one, especially in matters like drunken driving cases, where "observations at the scene are paramount."
"Whether or not there are notes, that’s another issue," Gold adds. He says his own practice is to write to the municipal prosecutor early on, with a request to preserve and provide any police notes.
Jon-Henry Barr of Clark, president of the N.J. Municipal Prosecutors Association, remarks: "I expect many in the defense bar are excited about a new discovery tool" but "I suspect that excitement may be short-lived."
Barr says that in his experience, many officers do not take notes and the rule change will discourage those who do. He also says that the notes are unlikely to contain anything beyond what is in the police reports.
Defense lawyers might think that the raw notes taken on the spot would hold some exculpatory information, for instance, that a client charged with drunken driving was not as drunk as the report claims. But if they have to turn their notes over, those police who do take notes "won’t write something like that down," Barr says.
The committee took up the witness-birthdate idea after a private attorney pointed out the inconsistency with Superior Court Criminal Part rules, which since 2007 have required that potential witnesses’ birthdates be turned over in discovery.
The committee proposes identical language for the municipal court rules, since the birthdates enable both sides to help identify witnesses who have common names and check criminal histories.
The proposed change allowing courts to issue protective orders for "confidential information recognized by law" is identical to language added to the criminal rules in 2011.
It would, for example, allow for shielding the location of a victim of a sexual offense seeking a restraining order under Nicole’s Law.
Proposed revisions not having to do with discovery include formalizing the issuance by phone of domestic violence and Nicole’s Law restraining orders and expanding the plea-by-mail program for traffic offenses.
Criminal and municipal courts have been issuing restraining orders over the phone since 2011, when the Supreme Court relaxed the rules.
A joint committee recommended revising the rules for both courts to codify the practice.
The proposed change to R. 7:2-2 would differ from the de facto practice in that judges would not have to find an emergency that justifies not seeking the order in person and that a copy of the order would have to be served on the defendant in every instance, even if the defendant was not present.
A revision to R. 7:12-3 would drop the present plea-by-mail requirement of showing it "would constitute an undue hardship such as illness, physical incapacity, substantial distance to travel, or incarceration" if the defendant had to show up in court.
Barr says he supports expanding the plea-by-mail option because it will help reduce court congestion.
Gold says it will not impact lawyers much because people tend not to hire lawyers for the minor offenses for which it is available — those that do not involve any loss of driving privileges and did not result in personal injury to someone other than the defendant.
The committee considered and rejected rule changes that Barr says would have interfered with municipal-court plea bargaining. One would have prohibited downgrading state offenses to municipal disorderly conduct or loitering violations. The committee found that since such downgrades are already prohibited by statutory and case law, a rule on the same conduct would be redundant.
Last Nov. 16, the State Bar Association passed a resolution in favor of giving prosecutors discretion to amend disorderly person charges to allow defendants to plead guilty to municipal ordinance violations covering identical conduct.
The state League of Municipalities weighed in with its own resolution on Dec. 5, urging government and judicial officials "to permit plea bargaining to continue, including the use of municipal ordinances as downgraded offenses or amendments, where determined to be appropriate."
Open-government advocate John Paff, who asked for the change, says the idea was that "the rules need to require the municipal court judge to oversee these downgrades, since the prosecutors aren’t doing it."
Comments to the report are due by April 1.